Tuesday, October 25, 2005

Intellectual Property: Response to Tom, Part 1

Tom and I have tangled on intellectual property rights before. Some of our differences are semantic, others substantive. But before tackling the differences, it’s worth noting that Tom and I agree (I think) on certain conclusions: (1) that IP differs from traditional property in some important ways, (2) that we ought to be more skeptical of IP than traditional property, and (3) that the rent-seeking activities of interested parties (e.g, Disney, RIAA) have strongly affected the development of IP law in undesirable ways.

Now to the differences. In this post, I’ll focus on the major semantic difference, which is the use of the term “natural rights.” Natural rights is not a term I use often, so in some sense I’m indifferent to its use. But I think Tom has adopted a definition at odds with that employed by most practitioners of natural rights theory (or the closely related natural law theory). In our earlier blog discussion, Tom concluded, "Only a right that an individual can in general effectively assert in a state of nature can qualify as a natural right." In his debate with Adam Mossoff, he treats natural rights as synonymous with customary or common law rights. Either of these would be a novel definition, as most natural-law/natural-rights folks say that natural rights derive from our nature as human beings and the application of right reason. More here.

If we nevertheless accept Tom’s notion of natural rights as those that would arise through some kind of decentralized stateless legal process, then I’m willing to concede that IP is most likely not a natural right. Historically, it did not arise from common law, and while we cannot know for sure what would have happened in the absence of IP statutes, I’m willing to stipulate that IP (at least in the form of copyright and patent) probably would not have evolved.

But this approach just collapses the question of whether IP is a natural right into a question about the optimality of evolved versus statutory law. I don’t think that debate has arrived at a clear answer. The models alleging to show that common law evolves toward efficient rules are riddled with holes (a point I’m willing to expand upon). Even if those models are taken as given, they still only show a weak tendency toward efficiency. Even with norms other than efficiency, I don’t know of any model or argument that demonstrates the superiority of evolved law over statutory law for every type of case or area of law. The strongest case one can make for evolved law over statutory law is that it has fewer problems than statutory law, especially once the influence of rent-seeking is taken into account. I find this argument fairly persuasive, but its conclusion is not that evolved law will outperform statutory law in every respect and for every kind of issue, but simply that it performs better on net. This leaves plenty of room for suboptimal outcomes in evolved law’s treatment of specific issues like intellectual property.

To put it another way: Suppose we define natural rights as those which would emerge from a decentralized legal process. Fine, I say, then IP is not a natural right. But so what? We have no basis for concluding that the treatment (or absence of treatment) of IP in a decentralized legal system would be desirable, even if we think such a system would be desirable all things considered.

8 comments:

Murky Thoughts said...

You want from nature? I'll give you from nature. I think we accept that design and hence fashion is IP. Well notice the pervasiveness across history and culture of things like sumptuary laws, the right to wear an eagle feather in your headdress, heraldic emblems (including the U.S. Presidential seal, which is not patented but nevertheless not within the rights of the Onion to use), the crown & sceptor. Flags obviously belong to certain people or ideas or else we wouldn't worry about waving an Israeli flag around on our next night hike through the streets of Karachi. Just because the symbols of the monarch differ in lifetime and transfer rules from a design under a modern American patent doesn't mean they aren't IP. I'm willing to say there have been symbols of leadership since not long after we learned to bang two rocks together. And if there are non-industrialized societies still that don't have private property of the real and personal kinds, I bet they have private IP in the form of the symbols of rank or leadership. I'd bet almost anything ('specially since it's not subject to verification) that such things predate the invention of the other kind of private property. I imagine the right to wear ermine (or whatever) was owned and enforced simultaneously with the aristocratic title and land title of the "Lord" who enjoyed ownership of all three only at the pleasure of the king. The land could escheat and so could the right to wear ermine. Such stuff looks a lot like IP to me.

Murky Thoughts said...
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Murky Thoughts said...
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Murky Thoughts said...

Writing the above I stumbled into the distinction between property and private property, which previously I'd found it all too easy to overlook in talking about intellectual property (i.e. I never hear "private intellectual property"). I wonder if people when they ask whether IP is "natural" tend to think exclusively of single-owner IP? If that's the name of the game, then I'd feel compelled to say that a land title isn't all that private. Private land gets trespassed, escheats to the state and gets reclaimed by eminent domain, not to mention getting overrun and stolen by invading armies. The state stands behind you to protect your possession and right of conveyance "for now." That's what your king does for right to wear ermine as well.

Murky Thoughts said...

I did a little Googling and see people seeming to view the naturalness of property rely on scarcity, which is supposed to be a property of ordinary property but not intellectual property. I think scarcity characterizes natural IP disputes as well. It's the scarcity of preeminence. Not everyone can be a star. If everyone were as popular as Elvis, it wouldn't mean much to be Elvis. Likewise for merely styling oneself as Elvis (passing off). Under this view, in the enormously populous and relatively anonymous social systems our species lives in now, it makes sense to me that one needs copyright and patent to incentivize innovation, because a great idea doesn't stay in your tribe or village but will spread fast and suddenly seem to be coming from everywhere and originating from nobody. No glory to the inventor, in other words. Instead of letting that happen, nowadays we give the inventor a monopoly, so a)you know who that great idea is coming from (or what to brand to attribute the glory) and/or b) you make a ton of money and buy a fancy car, home, and jewlry so that people can tell you're successful. Just as money isn't all about food and shelter, I don't believe innovation and creativity have ever been just about better hunting and sheltering, and while I can imagine a world without personal property, I cannot imagine a world without creativity-based prestige.

Murky Thoughts said...

I "developed" the above thoughts a little more in a post on my own blog. I'm proud (but not licensed) to say Richard Posner said it sounded sensible to him.

Murky Thoughts said...

Relatedly, thanks for the discussion!

Murky Thoughts said...

Or for the "spur to thought" at least.